The pro bono case filed by Morrison & Foerster on behalf of Georgia voters seeking a secure elections system goes to trial today. A federal district court in Atlanta is conducting a remote hearing today to weigh testimony on our clients’ motion for a preliminary injunction to require that Georgia officials use hand-marked paper ballots instead of electronic ballot marking devices for in-person voting in the November election.
In August 2019, MoFo won a federal court order that required Georgia to stop using its all‑electronic voting system by year’s end because of the system’s proven vulnerability to cyberattack. The ruling in Curling v. Raffensperger held that, in today’s environment of sophisticated election interference, continued use of the system would likely violate the constitutional right to vote. This lawsuit began in 2017 after the state ignored independent researchers’ warnings that they had easily penetrated the elections system through the internet. MoFo became lead counsel for the lead plaintiffs in spring 2018.
Under pressure by the lawsuit, the state in 2019 adopted a paper-based system, but with a critical flaw: it uses electronic “ballot marking devices” that convert votes marked on a paper ballot into 2D barcodes before counting them. In October 2019 the MoFo team filed an amended complaint on behalf of plaintiffs to challenge the new system because it remains vulnerable to cyberattack; moreover, its design makes it impossible for individual voters to tell if their votes have been counted as cast and is impervious to effective post-election auditing to uncover irregularities. The new system was put to the test in the state’s June 2020 elections and failed miserably, with widespread reports of machine breakdowns and hours-long lines.
The hearing that begins today is focused on plaintiffs’ motion for an injunction that would order use of hand-marked paper ballots for all in-person voters who can feasibly use them, with provisions for those voters who cannot. The ballots would be read by scanners, a widely-used voting system that easily allows post-election audits to detect any miscounts or other problems. The existing Dominion voting system in Georgia already is set up to scan and tabulate hand-marked ballots, and so we contend that there is ample time for state election officials to use this much simpler, more reliable, and more secure approach within the existing voting system for elections this year, including Election Day, Tuesday, November 3rd.
David Cross leads the litigation team in Curling v. Raffensperger, which includes partner John Carlin, of counsel Veronica Ascarrunz, associates Arvind Miriyala, Lyle Hedgecock, Mary Kaiser, Rob Manoso and Eileen Brogan, and national security analyst Reema Ali.
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